Gay Iranian wins challenge to asylum refusal
A 36-YEAR-old gay man who claimed he fled Iran after he was raped by the son of a colonel in that state's police is entitled to have his application for asylum re-heard, a High Court judge ruled.
The man claims he will be persecuted over his sexuality if he is sent back and also says the colonel appeared during the rape and took a picture or video of the incident on his phone which the policeman later showed to the victim's mother.
The man says the incident started when the policeman's son, who lived in a neighbouring apartment, invited him to watch a gay porn DVD and attempted to force him to have sex with him. He initially refused but was blackmailed into engaging in sex when the neighbour threatened to tell his policeman father that he (the victim) had supplied the DVD.
The man later fled the country concealed in his uncle's friend's car and later a truck.
He arrived here in June 2007 and applied for asylum but this was rejected at first stage and on appeal. He took High Court proceedings and this case was settled on the basis that he could have a re-hearing of his case before the Refugee Appeals Tribunal.
That tribunal again rejected his application and his lawyers then asked the High Court to quash that decision on the basis that the tribunal erred in a number of respects including that there was a failure to indicate to him that the fundamental aspect of his claim, in relation to his homosexuality, was being re-opened during that hearing and that he was given no opportunity to comment on it.
The State opposed his action.
Granting the man leave to challenge the refusal of asylum and remitting the case back to the tribunal, Mr Justice Colm Mac Eochaidh said the manner in which the tribunal assessed the credibility of the man, and in concluding he was not a homosexual from Iran, was sufficient to warrant an order quashing the decision.
The judge said he found it "particularly difficult to comprehend" how his claim to be an unwilling participant in the alleged rape could have been found by the tribunal to have been undermined by the fact that he had also told the hearing he knew the alleged rapist and had made suggestive overtures to him in the past because he found him attractive.
The tribunal's findings that the alleged pictures cast doubt on his claim to be gay was irrational and illegal, he said.
The tribunal had also mischaracterised evidence from a gay witness who knew the applicant for some five years and who had said he was "absolutely convinced" the applicant "is not a straight man", the judge found.
It was incumbent on the tribunal to highlight that an applicant's credibility, and the narrative of self-identification as a gay man, are relevant considerations which should be taken into account in assessing such a claim, the judge said.